Justices Asked to Revive N.C.'s 'Choose Life' Tags

Justices Asked to Revive N.C.'s 'Choose Life' Tags

North Carolina state legislators want the U.S. Supreme Court to review a February appeals court decision that blocked the state from issuing a “Choose Life” specialty license plate without offering drivers a pro-choice alternative.

North Carolina House Speaker Thom Tillis and Senate Pro Tempore Phil Berger contend the U.S. Court of Appeals for the Fourth Circuit was wrong to conclude that North Carolina exercised viewpoint discrimination when the state offered drivers a “Choose Life” plate without providing pro-choice advocates a version of their own.

The state lawmakers, represented by the Alliance Defending Freedom and Scott Gaylord of Elon University Law School, said in their high court petition in July that North Carolina’s specialty license plates are a form of “pure government speech” and that the state should be allowed to control the message.

The petition asks the Supreme Court to resolve a split among the circuit courts that have addressed whether specialty license plates are government speech or private speech. The Fourth Circuit’s decision, the lawmakers’ petition said, “is predicated on a novel and unworkable standard for mixed speech that this court has never considered, let alone discussed.”

“The 4th Circuit’s decision is at odds with other circuits that have upheld the right of states to issue such plates,” ADF senior counsel David Cortman said in a written statement.

North Carolina’s general assembly in 2011 passed legislation to introduce the “Choose Life” plates at a cost of $25, with most of the proceeds going to the Carolina Pregnancy Care Fellowship, a pro-life nonprofit that caters to pregnant women.

When attempts failed to amend the bill to include a “Respect Choice” license plate option, the American Civil Liberties Union sued the state in U.S. District Court for the Eastern District of North Carolina. The complaint, filed in September 2011, alleged First Amendment violations.

In December 2012, the district court sided with the plaintiffs and permanently barred the state from issuing “Choose Life” plates.

“By authorizing the ‘Choose Life’ plate without also offering a pro-choice alternative, the state has engaged in impermissible viewpoint discrimination,” Senior U.S. District Judge James Fox wrote in his ruling.

In the Fourth Circuit, attorneys for North Carolina pointed to Pleasant Grove City v. Summum, a 2009 U.S. Supreme Court decision that found viewpoint discrimination is permissible when the government controls the speech forum.

Fourth Circuit Judge James Wynn Jr. said the ruling in Summum—which focused on the display of the Ten Commandments in a public park—was “context-specific” and “multi-faceted.” Wynn, writing for the unanimous circuit panel, said the appeals court was turning down “North Carolina’s blanket contention that all that matters is who controls the message.”

The Fourth Circuit employed a four-factor test to determine the plates’ speech category. The court had previously used the test in a case on whether to allow Virginia drivers the option of a “Sons of Confederate Veterans” specialty plate.

As it had in the Virginia case, the appeals court found that North Carolina’s specialty license plates are not pure government speech.

The license plate program’s purpose is “to allow North Carolina drivers to express their affinity for various special interests,” Wynn wrote. The judge said, later, “the specialty license plate program was intended to be a forum for private expression of interests.”

“North Carolina invites its vehicle owners to ‘[m]ake a statement’ and ‘promote themselves—but only if they are on the government’s side of a highly divisive political issue,” Wynn wrote. “This, North Carolina may not do.”

The Fourth Circuit’s determination that North Carolina’s “Choose Life” plates implicate private speech, the state lawmakers said in their petition, opens the door to motorists seeking plates “advocating views with which North Carolina disagrees—‘Respect Choice,’ ‘Kill the Sea Turtles,’ ‘Kids Last,’ and ‘Undermine Our Troops.’” Or North Carolina could decide to shut down the specialty program altogether, the high court petition said.

Christopher Brook, legal director for the ACLU of North Carolina Legal Foundation, said his group will respond to the lawmakers by the high court’s Sept. 12 deadline.

“To me, at bottom, this is not an abortion-rights case, this is a First Amendment case,” Brook said.

Contact Jimmy Hoover at jhoover@alm.com.

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